Psychological Problems - Criminal Confessions of Innocent Persons

( Originally Published 1904 )

MY theme tonight is hoary with frosts of centuries, and the question that it presents is as mysterious as any of the many that have presented themselves for solution by students either of forensic medicine or of experimental psychology. My only hope is that I may be able to say some-thing that is not as venerable with antiquity as the theme itself. It is not my purpose, however, to formulate a new scientific dogma ; but merely to suggest a method of study of a subject that is as important as it is ancient, and is as vital to-day as it ever has been in the history of criminal jurisprudence. If, therefore, I shall at any time seem to be dogmatic, I beg pardon in advance.

It is well known to every student of forensic medicine that, from time to time in the history of criminology, cases have been reported of criminal confessions made by persons who have subsequently been proven to be entirely innocent.

I will not weary you by extensive citations of particular instances; for every student of medical jurisprudence is familiar with the facts and their legal aspects. I have, however, selected one typical case, because it embraces all the psychological features which I shall undertake to examine. In the course of a learned discussion of the legal phases of this class of cases, Mr. Wills, in his able treatise on Circumstantial Evidence, epitomizes the case referred to in words following :

" A very remarkable case of this nature was that of the two Boorns, convicted in the Supreme Court of Vermont in September Term, 1819, of the murder of Russel Colvin, May to, 1812. It appeared that Colvin, who was the brother-in-law of the prisoners, was a person of weak and not perfectly sound mind; that he was considered burdensome to the family of the prisoners, who were obliged to support him; that on the day of his disappearance, being in a distant field where the prisoners were at work, a violent quarrel broke out between them, and that one of them struck him a violent blow on the back of the head with a club, which felled him to the ground. Some suspicions arose, at that time, that he was murdered, which were increased by the finding of his hat in the same field, a few months afterwards. These suspicions in process of time subsided ; but in 1819, one of the neighbors having repeatedly dreamed of the murder, with great minuteness of circumstances, both in regard to his death and the concealment of his remains, the prisoners were vehemently accused, and generally believed guilty of the murder. Upon strict search, the pocket-knife of Colvin, and a button of his clothes, were found in an old open cellar in the same field; and in a hollow stump, not many rods from it, were discovered two nails, and a number of bones believed to be those of a man. Upon this evidence, together with the deliberate confession of murder and concealment of the body in those places, they were convicted and sentenced to die. On the same day they applied to the legislature for a commutation of the sentence of death to that of perpetual imprisonment; which as to one only of them was granted. The confession now being withdrawn and contradicted, and a reward offered for the discovery of the missing man, he was found in New Jersey, and returned home in time to prevent the execution. He had fled for fear that they would kill him. The bones were those of an animal. The prisoners had been advised by some misjudging friends that, as they would certainly be convicted, upon the circumstances proved, their only chance for life was by a commutation of punishment, and that this depended on their making a penitential confession, and thereupon obtaining a recommendation to mercy."

It is, as before remarked, useless to multiply illustrations of this class of cases, since every lawyer and every physician present, who is familiar with the literature and history of criminal jurisprudence, will recall to mind enough instances to fill a volume. Moreover, all will agree that a great majority of such confessions have been simply inexplicable. It is true that some cases have been recorded where it has been found that the confession was made to shield some dear friend or relative, who was really the guilty party: Other cases have been noted where it was suspected that the accused was tired of life, and resorted to confession of guilt as the easiest way of ridding himself of a burden too grievous to be borne.

In the days when the rack was the great instrument of judicial inquiry, it was, perhaps, natural to suppose that some confessions were made in order to obtain temporary release from torture; although, as I shall presently show, this should not be considered as a valid explanation in cases where the crime charged was punishable by death. Again, it is well known that confessions have often been made under promise of judicial leniency, and in some instances, where circumstantial evidence was strongly presumptive of guilt, it may be supposed that the promise was the moving cause of confession, even when the party was actually innocent.

These and other cognate causes may sometimes be invoked to account for sporadic cases of criminal confessions by innocent persons ; but when they are all taken into account, the fact remains that the great bulk of such confessions are, or have been until recently, utterly inexplicable. That I am not exaggerating when I say that the great bulk were shrouded in impenetrable mystery, will abundantly appear, when it is remembered that thousands and scores of thousands of the best known cases were those of persons who were accused of witchcraft. All the other known cases were, in point of numbers especially, comparatively insignificant; al-though many of them were apparently well authenticated. The witchcraft cases, however, present two points of vantage in this discussion. The first is in that when a person confessed herself guilty of witchcraft, she must be presumed to be an innocent person until it is judicially or scientifically determined that there is such a crime as witchcraft. That, of course, was not difficult in the good old days ; but we may now safely assume that a confession of the crime of witchcraft was a clear case of a criminal confession by an innocent person. The second point of vantage is that such cases point definitely to the fact that it is a purely psychological question with which we have to deal.

When innocent children and reputable women confess to crimes, the penalty for which is the most horrible form of death, we may know that they believe what they say. Knowing this, we also know that it is a mental state or condition which We have to diagnose. In at-tempting this diagnosis, it must be remembered that the psychological principles which apply to one ease are equally applicable to all.

I have said that the victims of witchcraft prosecutions evidently believed that their confessions were veridical. This is unquestionably true. We must, therefore, find a psychological principle under which a perfectly innocent person may be made to believe that he is guilty of a capital crime; and, so believing, be made to confess the crime, knowing that immediate death is the inevitable result of the confession. To that end we must find : First, a universal psychological law, applicable to all persons alike, conditions being equal, under which an innocent person can be compelled to believe that he has committed a capital crime. Secondly, we must find another universal law under which a condition of mind may be induced in which death loses its terrors.

It is, perhaps, superfluous to remark that under the old psychology such laws could never have been discovered. But most of those here present will anticipate me when I say that the new psychology reveals just what we are looking for; and that the law of suggestion is the salient feature of our theme. This law was discovered by a European scientist ; and, as it was first formulated, it was to the effect that persons in a hypnotic state are constantly amenable to control by the suggestions of others. Later on, the law of duality of mind was formulated, and as a working hypothesis a sharp line of demarcation was drawn between the already recognized two states of consciousness.

I need not dwell upon the supreme potency of suggestion, for every student of psychic phenomena is aware that a subject may be made to believe himself to be a dog or a devil, the spirit of a deceased person or a living person other than himself ; and that he will carry every suggestion to its logical conclusion so far as it is physically possible. It follows that he may be made to believe that he is guilty of crime. All that is necessary is that the suggestion be made with strength,' vigor, and persistency. Reason is dethroned ; experience counts for nothing; the evidence of the senses is impeached ; the centre of control over the dual mental organism is displaced, and as long as this subjective state continues, or as often as it is renewed, the subject is dominated by the central idea embraced in the suggestion.

We have now found the law for which we were in search, namely, the law under which an innocent person can be compelled to believe that he is guilty of a capital crime.

The conditions under which this seemingly impossible state of affairs can be brought about must now be considered. To those not fully acquainted with the various phases of subjective states and conditions, but have learned a little of the common phenomena of hypnotism, the solution of the problem will seem to be referable to a condition of profound hypnosis. This, however, will be seen to be totally inadequate when it is remembered that when criminal confessions are made by innocent persons they always seem to be in full possession of their normal faculties.

Neither of these suppositions, however, is correct. That is to say, it does not require a condition of pro-found hypnosis to render a subject " suggestible nor is any subject in full possession of his normal faculties when he is suggestible ; that is, suggestible in the degree required for the production of the phenomenon under consideration. There must be some degree of abeyance of the objective faculties; although it may be so slight as to render it impossible to detect any abnormality in the actions of the subject. How slight a cause is sufficient to render a subject suggestible, many here present can doubtless testify if they will recall their experiences. For instance, it is well known that when any one visits a dentist's office for the purpose of having an aching tooth extracted, in nine cases out of ten the pain will cease the moment he enters the operating-room. And I want to say to every surgeon here present that this is a fact of profound significance and of infinite value to humanity; for it points to a general law under which painless surgery is possible by means of suggested analgesia, and without profound hypnosis. That law may be stated in a few words : An imminent and inevitable surgical operation invariably throws the patient into a partially subjective state, and in that state he is suggestible. It follows that if the surgeon understands the law and the methods of suggestion, he can perform a painless operation. I pointed out this fact in the New York Medical Journal as early as 1894; and since then hundreds of successful experiments have been made. The common experience mentioned in regard to aching teeth is demonstrative that local anaesthesia is produced by mental emotion; and the fact that this can be followed up by a painless operation, by simply making a positive suggestion of analgesia, is demonstrative that the patient was in a subjective state from the beginning.

This is somewhat of a digression ; but I merely wish to show how slight a cause is sufficient to induce the subjective condition, to suspend the reasoning faculties, and to cause the subjective mind to dominate the dual mental organism. The observation and experience of every physician and surgeon will at least bear me out in the assertion that fear and dread, especially of imminent and inevitable death, will induce the subjective condition; and that painless death is, under this law, the rule among all sentient creatures. Illustrations might be multiplied indefinitely, but it is unnecessary in this presence. It will be sufficient to recall the well-known fact that criminals, after all hope has fled, and the death sentence has been pronounced, invariably lapse into a state of profound indifference and meet death with stoical fortitude, — often with cheerful alacrity.

Every student of psychic phenomena is aware of the extreme facility with which a sensitive subject may be thrown into the subjective condition. Thus, Abbe Faria was accustomed to hypnotize his subjects by gazing upon them for a few moments and then suddenly shouting, " Dormez ! " (Sleep!) in authoritative and strident tone of voice. Charcot performed the same feat by flashing a Drummond light into the eyes of his patients ; and others have induced profound hypnosis by suddenly sounding a Chinese gong. In short, it is well known to all hypnotists that sudden fright is a potent agency for the induction of the subjective condition.

What is more to our present purpose, however, is the fact that a never failing emotional agency for the induction of the subjective condition is the dread or fear of imminent and inevitable personal calamity. It may be set down as axiomatic that Nature is ever kind to the victim of the inevitable. And this is true whether it is inevitable death or an inevitable surgical operation. Where the two conditions of imminence and inevitability are present the rule is invariable. It is Nature's compensation for her prodigality of life and the universality of death made necessary by the process of organic evolution. The apparent cruelty of the law that all must die is mitigated in the only way possible, namely, by universal immunity from pain during the process of dissolution. And this immunity is made possible by the spontaneous induction of the subjective condition upon the near approach of the king of terrors. Even the soldier in battle experiences this immunity, — not only from pain when struck by a bullet, but from all fear of death while the battle lasts. And, if mortally wounded, he treads the inevitable path without fear and without regret.

I think we may now safely assume that we have found the second universal law which we have been seeking, namely, the law under which a condition of mind may be induced which robs death of its terrors.

It seems like a work of supererogation to point out formally the application of these laws and principles to the cases under consideration. It is obvious that in the cases recorded of criminal confessions by innocent per-sons, the conditions were perfect, first, for the induction of the subjective condition; and secondly, for suggestion to do its perfect work, in (a) forcing upon the subjective mind of the victim a firm belief in his own guilt, and (b) in compelling him to confess his guilt. Let us glance at these conditions for one moment.

The first factors to be considered are the accusation, the arrest, and the imprisonment. These alone in the case of an innocent person would be sufficient to induce a feeling of terror and despair and a dread of impending death. For it must be remembered, as a factor of pro-found significance, that in all the cases recorded, so far as I am aware, the crimes charged were punishable by death. Were this factor absent, much of what has been said would lose its significance ; for it is the fear of impending death that induces the subjective condition.

The next factor to be considered is whatever may exist in the way of circumstantial evidence of guilt. Not that circumstantial evidence would, per se, convince an innocent person of his own guilt ; but that he would estimate it at its full value as a link in the chain which fate was forging for his destruction. Of course the stronger the chain of circumstantial evidence the greater would be his despair of being able to overcome it ; and if he should be unable to explain it away, his despair would be complete. Death would stare him in the face, and every condition necessary to the induction of the subjective condition would be present and active. All this, however, would be insufficient to induce a confession of guilt, or a doubt in his own mind as to his innocence. In addition to all this there must be a strong, vigorous, affirmative suggestion of guilt coming from another. Those who are familiar with the methods of detectives in this day and age of enlightenment, may have some idea of the suggestions that are borne in upon the unhappy victims of circumstances. Fortunately we are not left entirely to conjecture as to the methods employed in the golden days agone ; for we have at least one concrete example on record which typifies all the rest, ancient and, probably, modern. It occurred in the days of Cotton Mather. In President Andrew D. White's great work on The Warfare of Science with Theology, he gives a very graphic account of the New England persecutions for witchcraft; and in speaking of the confessions that were common in those days, he says:

"Confessions of witchcraft abounded; but the way these confessions were obtained is touchingly exhibited in a statement afterwards made by several women. In explaining the reasons why, when charged with afflicting sick persons, they made a false confession they said :

"By reason of that suddain surprizal, we knowing ourselves altogether Innocent of that Crime, we were all exceedingly astonished and amazed, and consternated and affrighted even out of our Reason; and our nearest and dearest Relations, seeing us in that dreadful condition, and knowing our great danger, apprehending that there was no other way to save our lives, . . . out of tender . . . pitty perswaded us to confess what we did confess. And indeed that Confession, that it was said we made, was no other than what was suggested to us by some Gentlemen; they telling us, that we were Witches, and they knew it, and we knew it, and they knew that we knew it, which made us think that it was so; and our understanding, our reason, and our faculties almost gone, we were not capable of judging our condition; as also the hard measures they used with us, rendered us incapable of making our Defence, but said anything and everything which they desired, and most of what we said, was in effect a consenting to what they said....' "

Here, then, we have a typical example of perfect antecedent conditions, and of the most effective method of producing the result. We have the arrest of innocent persons, the imprisonment, the accusation of a crime punishable by death, the dethronement of reason, the vigorous suggestion, so strongly enforced as to cause the belief of guilt in the minds of the victims, and we have the consequent confession. I submit that no student of experimental psychology of the present day, knowing all that is known of the law of suggestion, and practised in the methods of enforcing a false suggestion, could formulate a " set phrase of speech " more perfectly adapted to the purpose than the one we have quoted.

When we add to that form of words the dominating personality of the " Gentlemen " inquisitors, the constant iteration and reiteration of the charge of guilt, the exhortation to open confession as a recipe for curing the ills of the soul in this world, and a fire insurance policy for the next, we can readily see that if they had not confessed, and believed in the verity of their confession, it would have constituted an exceptional case —a suspension, in fact, of a law of nature.

It may be objected that the witchcraft cases presented exceptionally favorable conditions — conditions not present in the closing hours of the nineteenth century, and, consequently, not applicable to any possible case in current history. To this it may be replied that it is fortunately true that the witchcraft cases are not likely to be repeated in the future. It is also true that the conditions were exceptionally favorable, in that the victims were mostly women and children. But the law is the same in all cases ; and it will readily be seen that the law and the reasoning are as applicable to the case cited at length in the beginning of this paper as it is to the witchcraft cases. The latter predominate in numbers, it is true, but it must be remembered that all those cases are free from doubt; for the reason that when a party confesses to the crime of witchcraft we know that she is innocent. But we do not know how many innocent men have been hanged in consequence of confessions of guilt. It must also be remembered that subsequent proof of innocence is the exception; so that the preponderance of witchcraft cases may not be nearly so great as appearances indicate.

These remarks apply to modern times as well as to the time when a bare confession was considered conelusive evidence of guilt. And this must be my excuse for thrusting an apparently obsolete question upon the attention of this society. It is true that in this country the corpus delicti must be established before any one can be ' punished for murder ; and it has been held that the prisoner's confession, when the corpus delicti is not otherwise proven, is insufficient for his conviction. But it has also been held that when the corpus delicti is otherwise established the prisoner's confession is sufficient. I think, however, that later decisions require further corroborative evidence. Be this as it may, we will assume that the latter, and more humane rule, prevails. Assuming this for the sake of the argument, it would seem that all possible safeguards had been thrown around this class of cases. But this idea will be dispelled when it is remembered that even the corpus delicti can be established to the satisfaction of our courts and juries. by a very slight degree of circumstantial evidence. Witness the case of the Chicago sausage maker, who was accused of cooking his wife, and possibly, otherwise utilizing her in his business. That case was not at all complicated — or simplified — by a confession. A possible motive was shown, and his wife had disappeared ; but beyond that the tangible evidence of guilt consisted of a finger-ring and a piece of bone found in the tank in which it was supposed that his wife had met her doom. Does any one imagine that if he had confessed the crime the finger-ring and the piece of bone would have been called into requisition? The evidence in that case, establishing the corpus delicti, was curiously parallel to that in the Boorns' case quoted. In the latter case a motive was shown, and the supposed victim had disappeared. Beyond that the evidence was confined to a trousers-button, a piece of bone, a pocket-knife, an old hat and some nails, all assumed to have belonged to the supposed victim. In neither case was the death of the supposed victim proven by any positive tangible evidence whatever. But that is neither here nor there. The point is that even if the rule prevails that when the dead body is in evidence, an otherwise uncorroborated confession would be insufficient to warrant a conviction, the danger is not perceptibly diminished. For in view of the small amount of circumstantial evidence required to establish so vital a point as the corpus delicti, it is obvious that, if that were not in question, an exceedingly small amount of circumstantial evidence would be sufficient to sustain a confession. Moreover, the requisite amount is morally certain to be forthcoming, since a certain weight of such evidence is always necessary to warrant even an arrest for a capital crime.

In this connection a curious psychological fact must be mentioned, for it is invested with a profound significance in connection with the question of circumstantial evidence. Every experimental psychologist will bear me out in the assertion that whenever a per-son in the subjective condition makes a statement of fact, he will seek to corroborate that statement by every means available. And this is true whether the statement is veridical or false — whether it is adverse to his interests or favorable, whether it is sensible or idiotic. One of the most marvellous phenomena in this connection is shown in the wonderful ingenuity displayed by the psychic in finding corroborative reasons and evidence to sustain his assertions. This fact is accounted for in two ways, — first, by the fact that the subjective mind is characterized by monumental egotism ; and secondly, by the fact that, under the law of suggestion, the subjective mind is incapable of assimilating a fact that is not corroborative of the suggestion that is dominant for the time being.

Hence it is that when an innocent person confesses a crime, he will utilize every scrap of circumstantial evidence against himself for the sake of corroborating his false confession.

It will now be seen that, in the admission by courts of justice of confessions of guilt by persons charged with capital crimes, there is constant and imminent danger of being led into that greatest of all judicial misfortunes — the capital punishment of an innocent person. If that humane and merciful maxim of the law is to prevail, that it is better that ten guilty men should escape than that one innocent person should be punished, a rule of evidence must be adopted, forbid-ding the consideration, under any circumstances, of confessions by persons charged with capital crimes. And the first step in that direction should be the abolition of what is known, in the parlance of criminal defectives, as the " sweating " system ; that system under which a detective is turned loose upon a person charged with murder, and allowed to browbeat him into a confession before he has a chance to employ counsel. It matters nothing that the rule prevails excluding the confession if the party is not cautioned that all he may say will be used against him on the trial ; for the psychological condition necessary to secure a "voluntary " confession can just as well be induced by a shrewd detective after such a warning as before. Every one who is familiar with the system alluded to will bear me out when I say that the facilities are just as available to-day for inducing the psychological conditions necessary for securing a confession of guilt from an innocent person, as they were under the inquisitorial system of days' of medieval superstition.

These remarks, as before intimated, apply exclusively to confessions of capital crimes ; for it is not certain that the psychological conditions which we have been considering could be induced in cases not involving the life of the accused. That is to say, it is not certain that the subjective state could be induced in criminal cases by anything less than the fear of death or of physical torture.

As in all other cases where the line of observation is new, much must remain in doubt as to the limit of application of the law of suggestion to criminal confessions. But I think we are even now warranted in assuming that the following fundamental principles are reasonably well established.

1. The dread of impending death will cause certain persons to enter, spontaneously, the subjective condition.

2. In the subjective condition the subject is constantly amenable to control by the power of suggestion.

3. A strong suggestion, vigorously enforced by a dominant personality upon a person in the subjective condition, will cause the latter to believe in its absolute verity, and to act upon it in all essentials as though it were true, even though the suggestion be contrary to fact, reason, experience, and the evidence of the senses.

4. Finally, the proposition that works back to the foregoing and invests it with perennial importance to courts of criminal justice, is that — assuming the constancy of Nature - whatever power, faculty, or limitation belongs to any one individual, must exist, potentially, in every member of the human family.